R v Sabbah

[2004] NSWCCA 28

CITATION:	Regina v Sabbah [2004] NSWCCA 28 revised - 5/10/2005
HEARING DATE(S):	23/02/04
JUDGMENT DATE:	19 March 2004
JUDGMENT OF:	Ipp JA at 1; Sully J at 148; Adams J at 149
DECISION:	(1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted but appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Detaining for advantage - Robbery - Consistency of differing verdicts for different counts - Reasonableness of verdicts - Warning pursuant to s 165 of the Evidence Act 1995 - Directions to jury regarding fact that accused did not give evidence - Claim of Right - Acting on behalf of another - Whether sentence manifestly excessive - Approach to be taken in sentencing - Totality of sentences.
LEGISLATION CITED:	Evidence Act 1995, ss 38(1)(c), 128, 165
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50 Everett v The Queen (1994) 181 CLR 295 Jones v The Queen (1997) 191 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 193 ALR 184 M v The Queen (1994) 181 CLR 487 R v AEM [2002] NSWCCA 58 R v Crawley [2003] NSWCCA 149 R v Davis (1999) NSWCCA 15 R v Fuge [2001] NSWCCA 208 R v Hendradinata [2003] NSWCCA 161 R v ITA [2003] NSWCCA 174 R v OGD (1997) 98 A Crim R 151 R v Sanders (1991) 57 SASR 102 R v Sanderson (unreported, NSWCCA, 18 July 1994) R v Spokes [1999] VSCA 210 Taylor v The Queen (unreported, WACCA, 6 April 1998) Wong v The Queen (2001) 207 CLR 584
PARTIES :	Regina v Henry Aaron Sabbah
FILE NUMBER(S):	CCA 60348/03
COUNSEL:	P Ingram (Crown) P Byrne SC/I McLachlan (Appellant)
SOLICITORS:	S Kavanagh (Crown) M Ricci (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0541
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

60348/03

IPP JA
SULLY J
ADAMS J

Friday 19 March 2004

REGINA v Henry Aaron SABBAH

Judgment

1 IPP JA:

The offences committed by the appellant and the sentences imposed

2 The appellant was charged with five counts which can be summarised as follows:

(1) Detaining Uri Mogilevsky for advantage between 11 and 14 February 2001,

(2) Robbing Stephen Kelly of a sum of money in company between 11 and 14 February 2001,

(3) Robbing Stephen Kelly of $500 in company between 11 and 14 February 2001,

(4) Detaining Danny Goldstein for advantage between 11 and 14 February 2001, and

(5) Robbing Danny Goldstein of a mobile phone in company between 11 and 14 February 2001.

3 One Mahmoud Dib was charged, as a co-accused, with the same offences.

4 The appellant and Dib pleaded not guilty to the charges and were tried in the District Court before Hock DCJ and a jury.

5 As regards the appellant, the jury returned verdicts of guilty in respect of counts 1, 3, 4 and 5 and a verdict of not guilty in respect of count 2. The jury was unable to reach agreement as to the verdicts in respect of Dib.

6 Hock DCJ sentenced the appellant as follows:

(a) In respect of count 3, a fixed term of imprisonment of three years was imposed, dating from 3 March 2002 and expiring on 2 March 2005.

(b) In respect of count 4, a fixed term of imprisonment of four years was imposed, dating from 3 September 2003 and expiring on 2 September 2007.

(c) In respect of count 5, a fixed term of imprisonment of three years was imposed, dating from 3 September 2003 and expiring on 2 September 2006.

(d) In respect of count 1, a term of imprisonment of seven years was imposed, dating from 3 September 2005 and expiring on 2 September 2012, with a non-parole period of three and a half years expiring on 2 March 2009.

7 The aggregate head sentence thus amounted to imprisonment for ten and a half years. The effective non-parole period was seven years.

8 The appellant appeals against the convictions and seeks leave to appeal against the sentences imposed.

The grounds of appeal relating to the convictions

9 The grounds of appeal relating to the convictions are as follows:

“1. The verdicts of the jury on counts 4 & 5 are unreasonable and cannot be supported having regard to the evidence of the victim, Danny Goldstein, and to the verdict of not guilty on count 2.
2. Following on, the verdict of the jury on count 3 is unreasonable and cannot be supported having regard to the evidence and to the verdicts on counts 2, 4 and 5.
3. Following on, the verdict of the jury on count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdicts on counts 2, 3, 4 and 5.
4. The Trial Judge erred in not giving a general warning pursuant to s 165 of the Evidence Act in respect of the evidence given by the complainant, Mr Uri Mogilevsky, a confessed drug dealer.
5. The Trial Judge erred in failing to give proper directions to the jury regarding the fact that the appellant did not give evidence in the trial proceedings.
6. The Trial Judge erred in failing to give directions to the jury regarding the ‘claim of right’ argument advanced on behalf of the Appellant.”
Summary of the relevant facts

10 The Crown’s principal witness was Uri Mogilevsky. He was born on 6 October 1979. He began dealing in drugs while still at school. This course of conduct continued and, by the time of the trial, drug dealing was his principal source of income. His area of business seems to have been Bondi and its neighbourhood.

11 By February 2001, Mogilevsky knew of a rumour circulating in Bondi that he owed $3,000 to a man called Michael Abraham who owned a pizza shop in Bondi. Abraham did not testify at the trial but his name was frequently mentioned. There was evidence that gave rise to a possible inference that Abraham was the leader of a gang of drug dealers operating in Bondi. At one point he was referred to as the “king”. Counsel for the appellant put to Mogilevsky that, in February 2001, he owed Abraham $3,000, but Mogilevsky denied this.

12 On 11 February 2001 Mogilevsky received a telephone call from a man who said his name was Henry. Mr Mogilevsky understood him to say that his surname was “Dabbah”. The Crown case was that “Henry” was the appellant and it was not contended otherwise. In this telephone call, the appellant told Mogilevsky that he wanted to meet him. The appellant gave Mogilevsky information about himself and told Mogilevsky to check on him. The appellant told Mogilevsky that he would call him back. Mogilevsky made inquiries and, when the appellant telephoned again, agreed to meet him.

13 At about 10.00 pm the next evening Mogilevsky drove his father’s jeep to Bondi and waited outside a pizza shop on Bondi Road. It was not made clear whether this was Abraham’s shop. Mogilevsky saw a black Toyota car, which the appellant had told him he would be driving, pull up across the road outside a service station. The appellant was in the driver’s seat. Mogilevsky got into the car and sat down next to him. Mogilevsky noticed two large men standing in the vicinity of the service station.

14 The appellant drove the car to the service station. During this time Mogilevsky and the appellant exchanged names. The appellant asked Mogilevsky what he sold and Mogilevsky told him “mainly pot and a little bit of pills”. The appellant said, “I run the eastern suburbs, nobody deals here without paying me rent”.

15 A few seconds later the car door opened and Mogilevsky was confronted by the two large men. One held a gun to Mogilevsky’s side and told him to get in the back of the car. Mogilevsky did so and the smaller of the two men sat in the back with him. The larger man sat in the passenger seat in front. The smaller man punched Mogilevsky to the side of the head and demanded his keys, wallet and mobile telephone. The larger man held a small silver gun. Mogilevsky testified:

“I knew I was in trouble at that point, I was scared for my life.”

16 The appellant drove the car a short distance and then stopped. The larger man got out, took Mogilevsky’s keys and went to Mogilevsky’s jeep. The two vehicles drove to Bondi Junction and stopped in Spring Street outside the Commonwealth Bank. An old blue Tarago with three or four other occupants pulled up on the left. Mogilevsky was punched to the back of the head and told to look at one of the occupants of the Tarago. The hat or cap Mogilevsky was wearing fell to the floor of the Toyota. Mogilevsky was asked if he recognised the man in the Tarago. He replied in the negative. The man in the Tarago looked back at Mogilevsky and said:

“Yeah, that’s him.”

The Crown contended that this man was the co-accused Dib.

17 Eventually, the three vehicles proceeded to Queen’s Park. All the occupants of the cars got out. Mogilevsky said that they marched him into the middle of the park “in the pitch black, the darkness”. He thought he was going to die. He was bashed repeatedly. He said:

“I had guns pointed at my head. … – they made me kneel down, I had a gun to my forehead and a gun to the back of my head, and then they demanded money”.

While he was so kneeling on the ground with the guns pointed at him, the appellant was in front of him, about one metre away. One of the men said:

“You are going to give us 50 grand”.

One of the men also said:

“If you run, we’ll shoot you down”.

18 Mogilevsky was then asked where certain specific assets belonging to him were. He responded by saying they had been sold, or lost in a fire or stolen. He was asked about the jeep and said that it was under finance. He was then hit again. One of the men said:

“I’m going to enjoy killing you … I’m Palestinian, do you know what we do to Jews”.

19 The appellant then asked Mogilevsky where his money was and Mogilevsky said that he was owed a lot of money. He proffered the names of a number of people including one Stephen Kelly. At about this stage, Danny Goldstein, a school friend of Mogilevsky, rang on Mogilevsky’s mobile telephone and told Mogilevsky that he had $150 for Mogilevsky to pick up. Goldstein was indebted to Mogilevsky for gambling and purchases of marijuana.

20 Mogilevsky was handed his telephone and told to telephone those persons who owed him money. One of the men said:

“You better hope they have our money.”

Mogilevsky proceeded to make at least three telephone calls but none was fruitful.

21 Sirens were heard in the distance. Mogilevsky was grabbed by the shirt and the men ran towards Queen’s Park Road. They collected the three vehicles. Mogilevsky got into the back of the jeep, which the appellant drove. Mogilevsky directed the appellant to Kelly’s flat.

22 Kelly had been living with a friend who had returned to Ireland. Kelly owed Mogilevsky $120 and his friend owed Mogilevsky $1,000.

23 The men entered Kelly’s flat. They told him that he owed money. Kelly commenced to shake. Mogilevsky told him to pay the money he owed to “these guys”. Kelly pulled $200 out of his wallet and gave it to one of the men. He was then shaking badly and, according to Mogilevsky, looked very scared. When he was asked why he thought that Kelly was scared, Mogilevsky said that Kelly covered his face with his hands.

24 The events involving the payment by Kelly of $200 was the subject of count 2 on the indictment, of which the appellant was found not guilty.

25 Kelly made some reference to getting money from a bank. The men returned to the vehicles with Kelly accompanying them.

26 The men drove to a Westpac Bank automatic teller machine in Belmore Road, Randwick. There, the appellant and Kelly left the vehicle. Kelly was able to use his Commonwealth Bank key card and, according to the Crown, thereupon did so by withdrawing funds from the ATM. A bank officer testified that shortly before midnight on 12 February 2001 a number of attempts were made to withdraw various amounts at the ATM in question from Kelly’s account. The attempts were unsuccessful because they exceeded Kelly’s daily withdrawal limit. At 12:02 am on 13 February 2001, however, $500 was successfully withdrawn from the account.

27 Security photographs were tendered in evidence showing Kelly at the ATM with the appellant standing close to him. A jury could infer from these photographs that Kelly was looking anxious and the appellant was carrying himself in a threatening and intimidating way.

28 The incident during which Kelly withdrew $500 from the ATM and handed it over to the appellant and his cohorts was the subject of count 3.

29 Kelly then left and Mogilevsky was driven to a Commonwealth Bank ATM. The appellant told him to withdraw money, using his credit card. Mogilevsky withdrew $700 (his limit) and handed over the money. Photographs taken of Mogilevsky by the security camera at the Commonwealth Bank ATM were tendered in evidence.

30 Eventually the three vehicles drove to Goldstein’s house. On the way the appellant asked Mogilevsky how much money Goldstein owed him and Mogilevsky replied “$950”.

31 When they arrived outside Goldstein’s house, Goldstein approached the jeep in which Mogilevsky was sitting and handed him $150. Goldstein was told to get in the vehicle and he did so.

32 Goldstein was then asked for “the rest” of the money. Goldstein asked Mogilevsky how much more he owed and Mogilevsky said “another 800”. This was correct on the basis that, as Mogilevsky had previously told the appellant, Goldstein had owed Mogilevsky $950. Goldstein was asked when he would produce the $800. Goldstein replied, “probably within a week or two”. He was told, however, that it had to be done “that night”.

33 According to Goldstein, the man in the jeep had with him a cigarette lighter in the shape of gun. Goldstein said that this man slapped him across the head when he made “a smart remark”. Goldstein said that he “wasn’t too happy about being slapped”.

34 According to Mogilevsky, the larger of the two men who had entered the Toyota at the service station gave Goldstein a punch with his right hand to the left side of Goldstein’s face. According to Mogilevsky, “it was a big punch and I heard a big crack when it connected”.

35 One of the men asked Goldstein for his jewellery. Goldstein refused to give it to him but the man took it off him. The jewellery comprised a chain with a pendant, a bracelet and a ring that he was wearing on his little finger. All the jewellery was made of gold. According to Goldstein he did not want to hand the jewellery over but nevertheless did so.

36 Goldstein also handed over his wallet. The men looked through the wallet and returned it. There was no money in it.

37 The man sitting on Goldstein’s side then told him to hand over his mobile telephone. Goldstein complied with this instruction. In his evidence in chief, Goldstein was asked whether he wanted to give the man the telephone and he replied: “Not particularly”. He was then asked why he handed over the telephone and said:

“I don’t know, I just did cause I thought I’d be getting it back but you know I didn’t”.

He did not get the telephone back.

38 According to Mogilevsky, Goldstein appeared scared while he was seated in the vehicle. Mogilevsky explained that Goldstein “put his head down towards his lap” and “groaned”.

39 After Goldstein was told to get the additional money, he made a telephone call. Mogilevsky heard Goldstein mention the name “Shes” during the course of this telephone call. According to Mogilevsky, “Shes” was a reference to one Robert Sheslow.

40 The group drove on to Mogilevsky’s house in Kensington. He had told the men that he had $1,000 to $2,000 in cash at his home. On the way he telephoned his younger brother, Roni. He told Roni to get “all the money” out of the right hand pocket of their mother’s fur coat. Unbeknown to Mogilevsky and his brother, their mother had removed the $2,000 from the right pocket but there was $10,000 in the left pocket. Roni thought the $10,000 was the money that he should bring, and did so.

41 Mogilevsky told Roni to walk to the jeep at the end of the street, hand the money to him and walk away. Roni did more. He handed Mogilevsky a box that contained approximately 1,200 blue ecstasy tablets as well as the $10,000. Mogilevsky handed the box to the appellant who retained the contents.

42 In the meantime, Sheslow (who was a friend of Goldstein and Mogilevsky) had been telephoned by Goldstein. Sheslow testified that Goldstein’s, voice sounded “a little uneasy”. This call was made after midnight on 13 February 2001. After receiving the call, Sheslow drove one Danny Spiecer (who had also received a call from Goldstein) and Daniel Aron (who had received a call from Sheslow) to an ATM in Rose Bay. There, the three men withdrew about $800 which Sheslow kept.

43 An arrangement was then made by telephone for Sheslow to deliver the money so withdrawn to Goldstein, outside Goldstein’s home. Goldstein was still in the jeep with Mogilevsky and the other men. The three men proceeded to Goldstein’s home in Sheslow’s car. When Sheslow saw Mogilevsky’s vehicle he drove slowly past it and, without stopping, stretched out his arm and passed the money to Goldstein who was seated in the right rear passenger seat. Sheslow kept driving and turned his headlights off to ensure that he was not followed. He could not see well because of the time of night and the lighting. Nevertheless, he said that when he passed the money to Goldstein he noticed that he looked as if he had been crying, as did Mogilevsky.

44 After receiving the money from Sheslow, the appellant asked Goldstein if family was important to him and said:

“If you go to the police your family is dead”.

Goldstein was then released, having been in the car for an hour to an hour and a half. His jewellery was returned, but not his telephone.

45 When cross-examined, Goldstein was asked whether there was a discussion while he was in the vehicle about Mogilevsky owing money. He replied:

“Yeah, I was basically told that I owe him money and he owes someone else money”.


It was put to him, “during the time that you were in the jeep you were asked in total to repay a debt of $950, is that correct?”. He replied “Yeah, that’s correct”. Goldstein agreed that the amount he handed over that night was “no more, no less” than the amount he owed Mogilevsky.

Goldstein agreed that, on one of the occasions he was slapped, one of the men in the car said:

“He’s here to pay a debt, leave him alone”.

46 When cross-examined, Goldstein agreed that he got into the jeep voluntarily. It was put to him that he was not “forced to be there”. He replied:

“No, well I was just told to get the money and so I thought you know when I get the money that’s it”.

He was asked whether he felt threatened at any time and he replied: “Not totally, no”.

47 When cross-examined, Goldstein agreed that when he handed over his mobile telephone he was not threatened. He also agreed that at the time he handed over the telephone he thought he would get it back.

48 When cross-examined, Goldstein accepted that he did not see any injuries on Mogilevsky and did not see Mogilevsky threatened. He said that he did not see guns held at Mogilevsky and did not see him being assaulted. He agreed that he was not forced to remain in the vehicle.

49 The prosecution obtained leave to question Goldstein pursuant to s 38(1)(c) of the Evidence Act 1995. Goldstein then accepted that he had told the police that he had been hit and that “basically they would hit both [Mogilevsky] and I”.

50 The events involving Goldstein were the subject of counts 4 and 5.

51 The appellant then drove Mogilevsky home. According to Mogilevsky, the appellant said to him that if he went to the police, his family would be dead and he would be dead.

52 Mogilevsky testified that the appellant told him:

“That I now have no money, now that I have no money I’ll be selling his coke, I’ll get it for $4,500 an ounce and it will be pure and untouched, and if I go to anyone – if I buy off anyone else I’m dead”.

And:

“You’ll even be selling our pot”.

53 As a result of the assaults that he had endured, Mogilevsky’s right eye was bruised, his left eye was sore and he had bruises on his head. He did not seek medical attention for any of his injuries.

54 The events described during the period that Mogilevsky was in the company of the appellant and other men constituted the subject of the first charge.

The first ground of appeal: inconsistent verdicts

55 As mentioned, this ground is in the following terms:

“The verdicts of the jury on counts 4 and 5 are unreasonable and cannot be supported having regards to the evidence of the alleged victim, Danny Goldstein, and to the verdict of not guilty on count 2”.

56 Mr Byrne SC, who appeared on behalf of the appellant, submitted that on the evidence of Goldstein, given in cross-examination, he was never detained and the handing over of his telephone was not accompanied by any force or threat. He then submitted that, for the jury to have convicted the appellant on counts 4 and 5, they must have rejected Goldstein’s evidence and accepted the evidence of Mogilevsky in relation to these counts beyond reasonable doubt. He concluded by submitting:

“The insurmountable difficulty which then arises in seeking to make rational sense of the jury verdict is that, having apparently adopted this approach to [Mogilevsky’s] evidence in respect of counts 4 and 5, it quite inconsistently and inexplicably failed to accept beyond reasonable doubt [Mogilevsky] as a witness of truth in respect of count 2 when it returned a verdict of not guilty”.

57 The first part of Mr Byrne's argument on this issue is undoubtedly correct. The Crown Prosecutor had, in fact, submitted to the jury that they could be satisfied beyond reasonable doubt of all the elements of the counts in the indictment if they were to accept the evidence of Mogilevsky alone. Hock DCJ informed the jury that they were entitled to convict on the evidence of Mogilevsky alone, “provided you are satisfied beyond reasonable doubt that it is accurate and reliable evidence”.

58 In my view, however, the differing verdicts in respect of counts 1, 3, 4 and 5 on the one hand and count 2 on the other are capable of a rational explanation.

59 There is a large body of evidence that in varying respects supports and corroborated the evidence of Mogilevsky in respect of counts 1, 3, 4 and 5.

60 As regards count 1, a number of witnesses testified that on the night in question, after Mogilevsky had returned to his home, his eyes and nose were red and swollen, and his left eye was bruised and there were bumps on the back of his head. Police found Mogilevsky’s cap at the appellant’s house and the surgical gloves described by Mogilevsky were found in the Toyota Echo. The Commonwealth Bank ATM records corroborated Mogilevsky’s evidence of his transactions in respect of his withdrawals on the night in question. Through the manager of the bank, photographs extracted from the Commonwealth Bank’s security camera were tendered showing Mogilevsky, on the night in question, withdrawing money.

61 Thus, in summary, there was evidence which tended to confirm Mogilevsky’s testimony that, late at night, at the times alleged by him, he was beaten up, one of his assailants wore surgical gloves, he withdrew money from his bank account by way of the ATM, and his cap was left behind in the appellant’s vehicle.

62 Mogilevsky’s evidence concerning count 3 was supported by the bank evidence that showed the withdrawals by Kelly in the amount and at the time asserted by Mogilevsky and the photographs are also capable of supporting his evidence in the respects I have mentioned.

63 There is also a body of evidence that tends to support Mogilevsky’s evidence concerning counts 4 and 5. Goldstein’s testimony itself is not entirely inconsistent with that given by Mogilevsky. Goldstein did not want to produce the $800 he owed to Mogilevsky (after handing over $150) that night. He first only offered to do so “within a week or two”. When immediate payment was insisted upon, he proceeded - in the middle of the night - to telephone persons who owed him money. It is difficult to escape the conclusion that Goldstein proceeded to communicate with these persons at this unusual hour, because he was intimidated and scared. After all, he had been slapped when he made a “smart remark” and, also, punched. Moreover, he had removed his gold jewellery and handed it over to the men in the vehicle. This included a chain and pendant which he had since he “was born or two years old”. It is immaterial that the jewellery was later returned. It is far-fetched to suggest that he did these things voluntarily and without threats and intimidation. In fact, he said, as I have noted, “I didn’t really want to be there”. His reply, “not totally, no,” when it was put to him “at no time did you feel threatened,” is revealing. There was evidence that he looked scared.

64 Much of the weight to be attributed to Goldstein’s evidence must depend upon the jury’s impression of his testimony. The same must apply to the testimony of Mogilevsky. This is truly a case where the jury’s view of the witnesses’ credibility would have carried great weight. Much would have depended upon the inflection given to particular words, the candour with which evidence was given, and the jury’s general impression of the reliability of the different witnesses.

65 In summary, in my view, it was reasonably open to the jury to consider that parts of Goldstein’s evidence did indeed support the testimony of Mogilevsky in regard to counts 4 and 5.

66 There is, on the other hand, no evidence supporting or corroborating Mogilevsky in regard to count 2.

67 The jury were properly directed to have regard to the evidence relating to each count separately and, where necessary, to discriminate appropriately between the counts when arriving at their verdicts. Hock DCJ instructed the jury that they must approach the evidence of Mogilevsky “with considerable caution and scrutinise it carefully”. Her Honour had granted Mogilevsky a certificate under s 128 of the Evidence Act in respect of the evidence he would give concerning his involvement in drug dealing. The learned judge gave the jury a full and appropriate warning of the possibility that the evidence given by such a person might be unreliable. The jury’s verdict on count 2 is explicable on the basis that the jury heeded that warning and decided to return verdicts of guilty only on those counts where there was appropriate supporting evidence.

68 In the circumstances, taking into account what was said in MacKenzie v TheQueen (1996) 190 CLR 348, Jones v The Queen (1997) 191 CLR 439, M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 193 ALR 184, I am satisfied that the jury did not act unreasonably in finding the appellant guilty of counts 1, 3, 4 and 5 and acquitting him on count 2.

The first ground of appeal: the reasonableness of the verdicts on counts 4 and 5

69 Mr Byrne submitted, generally, that the verdicts of guilty in respect of counts 4 and 5 were unreasonable and could not be supported, having regard to the evidence. Mr Byrne pointed to aspects of Mogilevsky’s evidence that, in his submission, lacked credibility. He pointed to the fact that Mogilevsky was a self-confessed drug dealer. He referred to the fact that, surprisingly, when the appellant was an awaiting trial prisoner, the Mogilevsky visited him on two occasions. He referred to Goldstein’s evidence that in many respects contradicted that of Mogilevsky.

70 In my view, these matters were essentially arguments to be made at trial; not on appeal. They were matters for the jury to decide and there is nothing to suggest that the jury did not carefully weigh them up in coming to their verdicts. Their decision in respect of count 2, in my opinion, shows that this is precisely what they did.

The first ground of appeal: the elements of counts 4 and 5

71 Mr Byrne submitted that the evidence was insufficient to prove the elements of counts 4 and 5 beyond reasonable doubt.

72 He submitted first, that the evidence did not establish that Goldstein was detained against his will. Again, he referred to Goldstein’s testimony that he got into the car voluntarily and did not feel threatened. I have pointed out, however, that there was ample evidence for the jury to find that Goldstein was indeed detained by force or fear of force.

73 Mr Byrne submitted that the evidence did not establish that actual violence or any “offer of violence” was used to obtain Goldstein’s mobile telephone. He submitted that the slap that, on Goldstein’s own evidence, he received, did not relate to the handover of the telephone.

74 In my view, for the reasons I have already mentioned, when regard is had to the evidence of Mogilevsky and Goldstein as a whole, there was ample material on which the jury could have relied in holding that Goldstein handed over the telephone and left it with the appellant and his cohorts by reason of implicit threats of violence against him.

75 In the circumstances I would not uphold the first ground.

Ground 2

76 As mentioned, this ground is in the following terms:

“Following on, the verdict of the jury on count 3 is unreasonable and cannot be supported having regard to the evidence and to the verdicts on counts 2, 4 and 5.

Count 3, it will be recalled, concerns the robbing of Kelly of $500 in company.

77 For the reasons expressed when dealing with the submissions concerning inconsistent verdicts I consider that this ground must be rejected.

Ground 3

78 This ground is in the following terms:

“Following on, the verdict of the jury on count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdicts on counts 2, 3, 4 and 5.”

79 This ground rests solely on the validity of the submissions relating to grounds 1 and 2. As I have rejected these submissions, I conclude that this ground has no substance.

Ground 4

80 This is in the following terms:

“The trial judge erred in not giving a general warning pursuant to s 165 of the Evidence Act 1995 (NSW) in respect of the evidence given by [Mogilevsky], a confessed drug dealer”.

81 Prima facie, it seems to me that s 165 has no application in this case as the evidence of Mogilevsky does not fall within any of the categories set out in s 165(1). Mr Byrne submitted that s 165(1) applied because the complainant “was a drug dealer and the user of prohibited drugs”. The only category in s 165(1) which could possibly cover the matters so relied on is that provided by s 165(1)(d). This sub-section concerns “evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. The mere fact that Mogilevsky was a drug dealer and the user of prohibited drugs does not mean that that criminal behaviour on his part concerned the events giving rise to the proceeding against the appellant.

82 In any event, Hock DCJ, as I have stated, gave full directions to the jury as to how they were to approach the evidence of Mogilevsky in the light that a s 128 certificate had been granted to him. Her Honour fully explained the nature and significance of such a certificate. She warned the jury of the potential unreliability of witnesses who receive such certificates. She pointed out that Mogilevsky might have benefited by giving a statement to the police and in being granted a s 128 certificate and that his evidence “is evidence of a kind which may be unreliable”. She stressed that the evidence of such a person must be approached with considerable caution and the jury should scrutinise it carefully.

83 In my view, her Honour was not required to give any further warning to the jury concerning the evidence of Mogilevsky.

Ground 5

84 This is in the following terms:

“The trial judge erred in failing to give proper directions to the jury regarding the fact that the appellant did not give evidence in the trial proceedings.”

85 Hock DCJ gave the following directions in regard to the failure of the appellant to give evidence:

“In these trials neither accused has given any explanation by himself giving evidence in response to the Crown case. There are a number of important directions of law that I must give you in relation to that. As you probably know an accused person may always by himself giving evidence make a response to a case presented by the Crown in the way of an explanation for the whole or parts of the Crown’s case, but there is no obligation on an accused to do so. As I have already pointed out the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offences. The accused bears no onus. Although the accused may give evidence in relation to the whole or any part of the Crown’s case by way of explanation for it or by way of additional matters which he may wish to raise, he may equally elect to give no such explanation himself in that regard. He is entitled to say nothing and make the Crown prove his guilt.
I direct you as a matter of law that each accused’s silence in this Court is not evidence against the accused. Each accused’s election not to offer an explanation for the whole or any part of the Crown’s case by giving evidence himself constitutes no admission by the accused’s and no such inference must be drawn from that fact. The accused’s election not to offer an explanation must not be used by you to fill gaps in the Crown’s case if you perceive there to be gaps in the Crown’s case or to make up what you might regard as deficiencies or defects in the Crown’s case. The election of either of the accused not to give evidence must not be regarded by you as any indication that he is guilty of any of the offences.”

86 In Azzopardi v The Queen (2001) 205 CLR 50 the majority stated at 70:

“It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence”.

87 Hock DCJ did not refer to the possibility that the appellant may have had reasons for remaining silent.

88 In R v Davis (1999) NSWCCA 15 Wood CJ at CL stated that trial judges should not overlook the admonition that there may be reasons why an accused person remains silent and that “ordinarily they should include this aspect, within any direction that is given including a comment upon the failure of the accused to give evidence”. His Honour went on to note, however:

“[In R v OGD (1997) 98 A Crim R 151] the principle was not expressed in absolute terms, and the consequence or significance of its omission, therefore, needs to be considered when the point arises on appeal, in the context of the case and in the light of the contentious assessment of trial counsel …”

89 The appellant was represented by experienced defence counsel who conducted his defence in a careful, thorough and competent way. Counsel did not request Hock DCJ to give supplementary directions to the jury to the effect that there might have been reasons why the appellant did not testify.

90 In my reasons in R v ITA [2003] NSWCCA 174 (with which Buddin and Shaw JJ agreed) I said:

”The existence of r 4 and s 99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA, 18 July 1994) that:
‘It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred’.”

91 Counsel for the respondent submitted that there may well have been sound forensic reasons why counsel for the appellant at the trial did not request a re-direction from the trial judge as to the possibility of there being reasons for the silence of the appellant. Speculation as to those reasons might have emphasised matters that might have been prejudicial to the appellant. In my view, this submission must be accepted.

92 In the light of the omission by counsel for the appellant at the trial to seek further directions to be given on this issue, the appellant now requires leave to rely upon this particular ground. For the reasons I have expressed, I would not give leave under r 4 for this ground to be argued as a ground for appeal.

Ground 6

93 This ground is in the following terms:

“The trial judge erred in failing to give directions to the jury regarding the ‘claim of right’ argument advanced on behalf of the appellant.”

94 During the course of the trial, counsel for the appellant asked her Honour to give directions as to the defence of claim of right in respect of count 3, that being the count involving Kelly. Later, her Honour was requested to give a like direction in respect of count 5 (relating to Goldstein’s mobile telephone).

95 The evidence on which the claim of right in regard to count 3 was based was said to be the following:

(a) Mogilevsky testified that Kelly owed him $120. Mogilevsky said that he might have reminded Kelly that he, Kelly, owed Mogilevsky money, and Mogilevsky “would have said something [to Kelly] along the lines that the money you owe me pay these guys”.

(b) Mogilevsky said that he told the appellant “about some of the people that owed me money”. Most of those people “were contacted” and Mogilevsky asked them to pay the money that they owed him.
(c) When speaking to Mogilevsky about getting money from those who were indebted to him, the men spoke of “our money”.

(d) Goldstein owed Mogilevsky money, and while in the jeep one of the men said that Goldstein was there “to pay a debt”.

(e) A person named Ace Cirri testified that Mogilevsky had told him that he owed Abraham $16,000.
(f) The appellant, on the night in question, was attempting, as Abraham’s agent to collect the debt Mogilevsky owed Abraham.

96 The case of the appellant on this issue was put as follows: the appellant was collecting money on Abraham’s behalf, he believed that Mogilevsky owed money to Abraham, he believed Kelly and Goldstein owed money to Mogilevsky; therefore it could be inferred that the appellant believed that he was entitled to take money from Kelly and the telephone from Goldstein (as the money and the telephone would go towards satisfying the debts Kelly and Goldstein owed Mogilevsky and, in turn, the debts that Mogilevsky owed Abraham).

97 Hock DCJ refused to accede to the request so to direct the jury. Her Honour considered that there was “a complete absence [of evidence] of a genuine belief of a right to the money” on the part of the appellant.

98 Mr Byrne, in effect, reiterated the arguments advanced to her Honour and submitted that her Honour had erred in failing to direct the jury in regard to the claim of right.

99 At the outset, it is to be noted that neither Kelly nor Goldstein was said to owe Abraham money. Only Mogilevsky was said to owe Abraham.

100 In R v Fuge [2001] NSWCCA 208 Wood CJ at CL (with whom Heydon JA and Sully J agreed) said (at[23]) that the principles relating to the defence of a claim of right applies to any crime of which larceny is an element “and it extends to any person who takes the property on behalf of another, or in collaboration with another, whom he believes to have a bona fide claim of right to the money or property in question: Sanders (1991) 57 SASR 102 at 105 per King CJ”.

101 On this basis, subject to adequate evidence being led, the defence of a claim of right was open to the appellant on the basis that he believed that, acting as Abraham’s agent, he was entitled to the $500 he obtained from Kelly and the mobile telephone he obtained from Goldstein.

102 Wood CJ at CL set out the elements of a claim of right in R v Fuge. Omitting the citation of authority, his Honour stated (at [24]):

“(a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another;
(b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not;
(c) while the belief does not have to be reasonable … a colourable pretence is insufficient;
(d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement;
(e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it;
(f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, … although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them;
(g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches;
(h) In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence … and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts;
(i) it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.”

103 Heydon JA said in Fuge (at [2]) that the proposition “that a person who claims to be owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears” is “astonishing”. His Honour said that the statements in other intermediate courts of appeal which justify this proposition call for reconsideration by this Court in a suitable case, there being no High Court decision preventing that course. I share his Honour’s surprise. In this case, the argument is similar to that advanced in Fuge. Indeed, it is more extreme as it involves the appellant acting as the collecting agent of Abraham. It is, however, unnecessary to examine the legal merits of the submission as I am satisfied that the evidence did not require her Honour to give any direction, as sought, to the jury.

104 The appellant did not testify and did not assert any particular belief by him. This, of course, is not fatal but it is a factor to be borne in mind. The appellant’s argument must rest on inference.

105 While there may be sufficient evidence to infer that the appellant, in committing the offences of which he was found guilty, was conducting himself on behalf of and in the interests of Abraham, there is simply no evidence that he believed, first, that Abraham had a legal entitlement to money from Mogilevsky. While Abraham appears to have conducted a legitimate business in one respect, it seems that he was also involved in drug dealing as the leader of a criminal gang. There is nothing to suggest that Mogilevsky’s debt to Abraham was in respect of a lawful transaction. Thus, there was insufficient evidence to draw an inference that the appellant believed that Abraham had a lawful entitlement to money from Mogilevsky.

106 Secondly, there was no evidence from which an inference could be drawn that the appellant honestly believed that Abraham had a legal entitlement to Kelly’s money and to Goldstein’s mobile phone. Were such an entitlement to exist, Mogilevsky would had to have assigned to Abraham his rights against Kelly and Goldstein. There was no evidence of such an assignment, be it oral or tacit. The appellant simply attempted to obtain the money and kept the phone by an exercise of physical intimidation.

107 Next, as regards Kelly, as was pointed out in Fuge, a claim of right “does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches”.

Mogilevsky testified that Kelly owed him $120. Ignoring the $200 the subject of count 2, the allegation in count 3 that the jury found proved was that Kelly was robbed of $500. There can be no claim of right to the balance of $380 in question.

As regards the mobile phone, the evidence was that Goldstein owed Mogilevsky $950. Goldstein paid Mogilevsky $150 when he first approached the jeep in which Mogilevsky, the appellant and the other men were sitting. Later, through Sheslow, $800 was given to Goldstein and this was handed to Mogilevsky who in turn handed it to the appellant and the other men. Thus, nothing further was owed by Goldstein to Mogilevsky. On that basis, the appellant could not have believed that he was legally entitled to keep and retain the mobile phone. Goldstein had earlier satisfied his debt to Mogilevsky

108 In my view, these matters are sufficient to dispose of the appellant’s argument in regard to claim of right.

109 I would dismiss this ground of appeal.

Application for leave to appeal against sentence: manifestly excessive

110 The first ground of appeal in regard to sentence is that the sentences imposed were manifestly excessive.

111 In sentencing the appellant, Hock DCJ observed that at the date of sentencing the appellant was 29 years of age, he had a supportive family (apparently his parents and a sibling); he was “in a relationship with a young lady who is expecting a baby”, and he had worked as a removalist for ten months before he was incarcerated; he does not abuse drugs or alcohol.

112 Her Honour said that in view of the serious criminality displayed by the appellant on the evening of the offences and the lack of genuine remorse she assessed the appellant’s prospects for rehabilitation as “guarded”.

113 The judge pointed out that the appellant had a relatively minor prior criminal history, although he had been in custody for an offence of supply of a prohibited drug. This occurred in 1993 when he served a twelve months minimum term. His record otherwise comprised offences of violence and drug offences for which he was either fined or placed on bond. Her Honour rightly observed that the present offences displayed “a disturbing escalation in the offender’s criminal behaviour”.

114 Hock DCJ noted that on 9 February 2001 the appellant was placed on a bond to be of good behaviour for 18 months for driving while his licence was cancelled. He disregarded the bond only three days later when he committed these offences. The judge rightly regarded this as an aggravating feature.

115 Hock DCJ referred to the seriousness of the offence of kidnapping and the importance of general deterrence. Her Honour was satisfied that the appellant was the ringleader of the criminal venture and this is not challenged.

116 The appellant’s submissions in regard to this ground of appeal were based substantially on the following propositions:

(a) As both Mogilevsky and Goldstein were released without having sustained any “substantial injury,” the applicable maximum penalty under s 90A of the Crimes Act 1900 (since repealed) was fourteen years and not twenty years.

(b) None of the victims suffered serious injuries, indeed there was no evidence that Goldstein sustained any injury and the injuries sustained by Mogilevsky were relatively minor.

(c) The time Mogilevsky and Goldstein were detained was in the order of hours, not days or weeks

(c) Each victim was released without the intervention of any other person.

(d) To the extent that her Honour found that the time held and the violence inflicted added to the objective gravity of the first offence, her Honour placed undue weight on these factors. The time held and the injury sustained were far less significant when compared with other cases: see for example, R vHendradinata [2003] NSWCCA 161, R v Crawley [2003] NSWCCA 149.

(e) When in remand, the applicant’s work was considered excellent.

(f) Hock DCJ wrongly found that she was satisfied beyond reasonable doubt that guns were used in the manner described by Mogilevsky “and this aggravates the seriousness of the kidnapping offence”.

(g) On an overall basis, the sentences were excessive.

117 I accept that the applicable maximum penalty for the detention for advantage offences was fourteen years. I also accept that Goldstein did not sustain any injury (other than perhaps bruising) and the injuries sustained by Mogilevsky were minor, that Mogilevsky and Goldstein were detained for periods of some hours, that each victim was released without the intervention of any other person, and that the appellant had a good record while on remand.

118 In my view her Honour was entitled to find, beyond reasonable doubt, that guns were used as asserted by Mogilevsky. The jury’s verdict on counts 4 and 5 show that they did not consider Goldstein to be a witness of truth. They accepted, generally, the evidence of Mogilevsky. In these circumstances it was open to her Honour to make the finding that she did.

119 Regard must be had to the fact that the several offences committed by the appellant reflect disturbing episodes of violent organised crime that were terrifying for at least three persons namely, Mogilevsky, Kelly and Goldstein. The appellant, as the ringleader of the group, bears the greatest responsibility for the callous thuggery that was displayed. The appellant’s conduct in forcing Mogilevsky to accompany him, in the middle of the night, on various journeys around Bondi, including being made to kneel in the lonely and dark Queen’s Park with guns being pointed at his head and other parts of his anatomy while threats against his life were being made, has to be regarded in a most serious light. The criminality of the appellant’s conduct towards Kelly and Goldstein was not of a minor degree. Full account must be taken of the threats of serious violence the appellant made to the victims should they go to the police.

120 I turn now to the two cases to which Mr Byrne referred.

121 In R v Hendradinata “substantial injury” was involved and the maximum penalty was therefore 20 years and not 14 years. Sully J approached the re-sentencing process required in that case by saying that a proper sentence at first instance “for the kidnap, the extended detention, and the substantial injury while unlawfully detained, of Mr Sidik was, in my opinion, a head sentence in the order of six years, with a non-parole period in the order of three and a half to four years”. His Honour said that, as regards two other co-offenders in that case, an effective head sentence of seven and a half years with a non-parole period of five years was appropriate.

122 In R v Crawley the offender pleaded guilty to the charge of detaining for advantage and was sentenced to imprisonment for ten years with a non-parole period of six and a half years. Mr Byrne rightly submitted that “the facts of the case can fairly be described as horrific”. The maximum penalty applicable was again 20 years and not 14 years.

123 In essence, Mr Byrne submitted that Hendradinata and Crawley indicate the range of sentences applicable to detaining for advantage and he argued that the sentences imposed on the appellant fell outside that range.

124 A dominant principle of sentencing law is that the sentence to be imposed must be commensurate with the seriousness of the offence. The seriousness of an offence is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, aggravating and mitigating factors, and the customary range of sentences applicable – if such a range exists.

125 A “range” accepted by the courts as setting the customary sentencing standard is an important factor in the sentencing process: Everett v The Queen (1994) 181 CLR 295 at 306. The main function of a range is to promote consistency or uniformity in sentencing. The importance of uniformity has been stressed: Everett at 306; Wong v The Queen (2001) 207 CLR 584 at 591. Lack of uniformity can give rise to a justifiable sense of injustice, both on the part of the offender and the general public.

126 The circumstances that potentially may be taken into account when determining the seriousness of an offence and the sentence that should be imposed are, in general terms, infinite in number. The weight to be attributed to particular circumstances is not capable of arithmetic precision and there is ample room for the exercise of individual judgment. This is a basic difficulty in setting a range of sentences. McHugh J in Everett (at 306) observed in this regard:

“Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ”.

127 Moreover, if I may repeat what I said in Taylor v The Queen (unreported, WACCA, 6 April 1998):

“Virtually always the sentencing judge will attempt to determine the appropriate range of sentences applicable to the offence. That range itself is not to be regarded as creating a set of strict confining limits, outside which a sentencing judge may never go. It is vitally important to preserve the discretionary power of an individual judge to impose a sentence which, because of the extraordinary factors pertaining to a particular case, may require a sentence outside that which is generally regarded as the range.
…
“A particular sentencing range may itself alter, depending on the nature of the offence and all the circumstances that are relevant thereto. Generally speaking the fewer the mitigatory and aggravating circumstances, the narrower the range, and the more such circumstances the greater the range. That is because of the breadth of discretionary choice inherent in each such circumstance.”

128 These remarks are of particular application to the offence of detaining for advantage, which may present itself in an infinite variety of forms

129 In Wong Gaudron, Gummow and Hayne JJ at 605 said:

“[In] the residuary category of error which, in the field of sentencing appeals is usually described as manifest excess or manifest inadequacy … appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

130 In determining whether there has been “manifest excess”, comparative studies of other cases may be helpful but their value will often be limited. In Wong, Gaudron, Gummow and Hayne JJ explained (at 606):

“Recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal”.

See also R v Spokes [1999] VSCA 210 where Ormiston JA expressed strong scepticism as to the value of comparative exercises in sentencing.

131 Against this background I turn to the two cases in question. In Hendradinata the offenders were aged 20 years, 18 years and 19 years respectively at the time of the offences. The offender in Crawley was almost 20 years of age at the time of the offence. In the present case the appellant was significantly older than the offenders in the other two cases.

132 The offenders in Hendradinata and Crawley had either no criminal antecedents or no relevant criminal antecedents. They were of relative good character. The appellant in this case, as I have mentioned, had a criminal record involving escalating violence and, moreover, was the ringleader in an organised criminal gang.

133 I have referred to the terrifying nature of his conduct and the degree of criminality involved. The appellant committed the offences whilst on the third day of an 18 month good behaviour bond. He did not plead guilty (unlike the offender in Crawley). The trial judge, rightly in my view, was sceptical of his professed remorse.

134 The particular matters to which I have referred, peculiar to the offences committed by the appellant, are important. They distinguish this case from Hendradinata and Crawley. They rightly influenced the sentencing judge.

135 I doubt whether Hendradinata and Crawley establish a “range”. Even if they do, for the reasons I have expressed, I am not persuaded that any of the several sentences imposed are outside such a range, or are manifestly excessive in the sense required for a successful appeal. I would not uphold this ground.

Application for leave to appeal against sentence: totality

136 The next ground is that Hock DCJ erred in the manner in which she applied the principle of totality to the individual sentences imposed on the appellant. It was submitted that the order for cumulation of sentences, one upon the other, resulted in an overall sentence which was manifestly excessive both as to the head sentence and the non-parole period.

137 In R v AEM [2002] NSWCCA 58 Beazley JA (with whom Wood CJ at CL and Sully J agreed) said (at [70]):

“The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved.”

138 Her Honour gave careful attention to the totality principle. This is apparent from the structure of the particular sentences. Count 5 was expressed to be concurrent with count 4. Thus, the conviction in respect of the robbing of the mobile telephone involved no increase in the overall sentence. The robbing of Kelly (count 3) resulted in a fixed term of imprisonment for three years from 3 March 2002 to 2 March 2005. The conviction in respect of count 4 was expressed to commence on 3 September 2003 and expire on 2 September 2007. The conviction in respect of count 1 was expressed to commence on 3 September 2005 and expire on 2 September 2012. Therefore, full recognition was given to the sentence in respect of count 1 (the detention of Mogilevsky for advantage), while the sentences on the other three counts provided for an additional head sentence period of three years six months imprisonment (as from 3 March 2002 to 3 September 2005) and extended the non-parole period by requiring the three and a half years non-parole period in respect of count 1 to commence on 3 September 2005.

139 Notwithstanding Mr Byrne's careful submissions on this aspect, I am not persuaded that her Honour erred in any respect. She seems to me to have given full attention and proper expression to the principle of totality. I would dismiss this ground of appeal.

Application for leave to appeal against sentence: was there a slip?

140 Finally, the appellant submits that the sentences imposed had an aggregate sum of six months greater than that intended to be imposed.

141 Her Honour stated in her remarks on sentencing:

“The effect of overall sentence is a head sentence of ten years imprisonment with a non-parole period of seven years”.

In fact, as I have pointed out, the overall sentence involved a head sentence of ten years six months imprisonment.

142 The appellant submitted that in imposing an overall sentence of ten years six months imprisonment her Honour had made an inadvertent error.

143 Counsel for the respondent submitted on the other hand that the slip on the part of the learned judge was in saying that the overall sentence was ten years. He submitted that her Honour in fact intended the overall sentence to be ten years six months.

144 Counsel for the respondent referred to an observation by the judge that: “The overall sentence has been varied slightly from the statutory ratio”. The respondent submitted that, in the light of the overall effective non-parole period being seven and a half years, an overall sentence of ten years imprisonment would be inconsistent with her Honour’s remark that the overall sentence varied slightly from the statutory ratio. Counsel rightly pointed out that a total sentence of ten years and six months is a sentence which results in the non-parole period being varied “slightly from the statutory ratio”.

145 I accept these submissions and conclude that her Honour made an inadvertent error in referring to the overall sentence being ten years. In my opinion, the individual sentences imposed by her were the sentences she intended and the overall sentence of ten years and six months with a total effective non-parole period of seven years is what she intended.

146 I would not uphold this ground.

Conclusion

147 I would dismiss the appeal against conviction, grant leave to appeal against sentence but would dismiss the appeal.

148 SULLY J: I agree with Ipp JA.

149 ADAMS J: I agree with the judgment of Ipp JA both as to the appellant’s convictions and his sentences and generally with his Honour’s reasons, except (with respect) for the observation made by his Honour arising from R v Fuge [2001] NSWCCA 208 expressing surprise at the availability of the defence of a claim of right to an offence of robbery. In all offences that have as an element an intention to defraud, the Crown must prove beyond reasonable doubt that the accused did not have claim of right to the property in question. It may be that, in the nature of things, this should be a matter for the accused to prove on the balance of probabilities lest it lead to quite unjustified acquittals. However, an honest claim of right is necessarily inconsistent with an intention to defraud. It seems to me that it would be surprising if the defence did not apply to offences where such an intention is an element.

150 With respect to ground 5, I would wish to emphasise the importance of trial judges obeying the admonition of Wood CJ at CL in R v Davis (1999) NSWCCA 15 that, ordinarily, a jury should be told that there may be reasons (other, of course, than incriminating ones) why an accused did not give evidence. In this case, however, it seems to me reasonably clear that the jury did not hold it against the appellant that he did not give evidence, since they acquitted him of the second count. For this reason, as well as those mentioned by Ipp JA, I would refuse leave under Rule 4 of the Criminal Appeal Rules to raise this matter as a ground of appeal.

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Last Modified: 07/18/2007